A Plea for Legal Peace

Abstract

AbstractThis chapter advocates legal peace between Germany and Italy as the most sensible and appropriate way to deal with the aftermath of Sentenza 238/2014 of the Italian Constitutional Court and its declaration of the unconstitutionality of the 2012 International Court of Justice (ICJ) Judgment in Jurisdictional Immunities. This plea does not only arise from frustration with the current impasse but also from the suspicion that the public good of legal peace has never seriously been canvassed by the Italian and German governments. Section II takes stock of the legal developments relating to the dispute between Germany and Italy since Sentenza 238/2014 was delivered. It especially focuses on the attitudes of the governments concerned, both in the context of the ongoing proceedings before Italian courts and elsewhere. It finds such attitudes opaque and unduly dismissive of the necessity to devise legal peace in the interest of the victims and of the integrity of international law. Section III highlights how the behaviour of the governments so far was at odds with the successful outcome of other intergovernmental negotiations concerning reparations for crimes committed during World War II (WWII), a process which has not been entirely finalized, as evidenced by the 2014 Agreement between the US and France on compensation for the French railroad deportees who were excluded from prior French reparation programmes. The Agreement between the US and France and all previous similar arrangements were concluded under mounting pressure of litigation before domestic courts against those states (and/or their companies) that were responsible for unredressed WWII crimes, thus a situation resembling the current state of the dispute between Germany and Italy. It is telling that litigation ended when the courts took cognizance of the stipulation of intergovernmental agreements establishing fair mechanisms for compensating the plaintiffs and victims of the relevant crimes. Such practice, therefore, is essentially in line with the proposition that state immunity (for human rights violations) is essentially conditional on effective alternative remedies for the victims. This and other controversial aspects related to the law of state immunity—such as the nature of state immunity, the North American remedies against immunity for state sponsors of terrorism, and the persistent dynamism of pertinent practice—are revisited in section IV. The purpose is to suggest that certainty about the law of international immunities, as allegedly flowing from the 2012 ICJ Judgment, is more apparent than real and that this consideration should a fortiori urge the realization of legal peace in the German–Italian affair.